-: SJC 13492 in the matter of an impounded case
and SJC 13493 in the matter of an impounded case.
-: Okay, Attorney Chayette? -: Yes, yes, thank you
Chief Justice Budd and may it please the court.
My name is Kara Chayette and I represent the two juveniles.
These courts have been paired because they raise
identical statutory and vagueness challenges
to chapter 123, section 35.
And I do expect to devote most of my time today
to those issues, but I'd be remiss if I just didn't note,
put a pin right up front, that even if the court disagrees
with me on the constitutional and the broader challenges,
that there are very fact-specific reasons why my clients
are entitled to have their commitments vacated.
And I'll just, the complete lack of findings
in the young man's case in Bristol County
and the court's really problematic,
least restrictive alternative analysis
in the young woman's case in Essex.
-: Can I ask you about that?
'Cause I was curious, 'cause I think you've got
a very good argument on JP.
But on ES, there was an issue where there was an inquiry
about other available, less restrictive placements
and none seemed to be available.
Why was that deficient?
-: Well, because, sort of think in terms
of the order of operations, this, you know,
we'll get to what I claim are
a lot of the procedural defects
that animate my constitutional challenge,
but this isn't really a phased statute like section 12 is,
but there are sort of, you make one determination
and then you move to the next and then you move to the next.
So is there a substance use disorder?
Is there the substantial, very substantial,
very imminent likelihood of harm absent hospitalization?
If so, if there's that grave danger,
is there some lesser restrictive alternative
to hospitalization?
What the judge did was having heard the clinician
that my client didn't meet the harm criteria.
Well, if there's no other alternative to hospitalization,
isn't she in danger?
She flipped the analysis.
That's my problem with that.
-: And the fact is- -: I don't see that.
I thought she did it.
I thought she did it right.
You've got the second ES is using fentanyl.
She's disappearing for four or five days
without telling her parents where she is.
We have a clinician finding that she has the disorder
and the judge is going, do you have any place to place
or you have any place to place
or even has the person come out of the room
and come back to the room?
And they said, we still don't have anywhere to go.
Isn't that no less restrictive alternatives?
-: Well, so I don't wanna, again, part of my big claim
is that given that the clinician said
this young woman does not meet the criteria
for commitment under any of the harm prongs.
I think if you read that transcript,
there's the judge, here's the clinician
and just keeps, well, you say she's not a danger,
but what about, is there any other place for her to go?
Don't you have to go and investigate that?
And there was a little bit of badgering of the judge
to this clinician to change her testimony
if there wasn't another place available that afternoon.
-: There are three parts to this statute, right?
And the first part, I tend,
just to put my cards on the table,
I tend to agree with you that we need medical testimony.
It's necessary, it may not be sufficient,
but it's necessary to support a finding
that you meet these two diagnostic criteria.
I don't though find that you need,
a judge can decide how dangerous that person is without,
that's not a medical determination,
whether they're gonna arm themselves or someone else,
particularly if they're taking fentanyl
and disappearing from the house for four or five days.
And how old is she, 16? -: She's 16.
-: To me, that's like red flag danger.
And even a judge can do that without medical testimony.
-: I cannot point the court to one definitive place
that stands for that proposition.
But part of the, but I- -: I can.
-: Oh, okay. -: Seven and eights.
-: Well- -: I mean, seven and eights,
that's what the judge does.
The judge makes the determination on whether or not
they're in danger either to themselves or to someone else
or whether or not they can,
and the judge can do that based on the testimony
on the first part.
So the judge does it in seven and eights.
-: But in every other commitment provision,
there's been some clinical professional evaluation
that indeed the person being drawn into the court
to be further evaluated,
that there's been some professional assessment
that indeed this person falls,
we have reason to believe that this person falls
within the ambit of the statute.
-: Can you help me like on an incompetent to stand trial
and you have the security of Bridgewater State Hospital.
My read, my memory is that the clinician, of course,
on a section 15 testifies,
and usually in court on a 15A, I guess it is.
It says that this person is not competent to stand trial.
And then the next inquiry by the court
is where should we place this person?
And we've been pretty strict on this and say,
well, if they're a harm to themselves or others,
they have in their mail,
they have to go to the strict confines of Bridgewater.
Is it that the judge gets to do that?
The clinician doesn't say the placement,
the judge gives the placement, correct?
Or am I wrong about that?
-: You know, I've having never appealed
or litigated one of those,
I don't feel competent to answer that particular question.
But I'd actually, I think when we start thinking
about 15 and 16, I'd actually point the court to Garcia.
In Garcia, right?
So there's a full blown trial
with all of its procedural protections.
And then there's the question about whether this individual
who's been found NGRI is gonna be hospitalized.
The Commonwealth bears the burden of proof.
The Commonwealth's expert says this individual
does not need to be hospitalized.
And the court registers in its decision,
its concern about the fact
that there was no competent expert testimony
that the individual needed hospitalization
and says in a footnote, we leave for another day,
whether expert testimony is necessary
to make this kind of a commitment decision
because otherwise it leaves unfettered discretion
in the hands of a judge to determine
who falls within the ambit of a statute.
And it points in that footnote, the court looks to 123A.
And that's one of my other arguments that we've got the,
so coming back to-
-: Let me just stop you right there for a second.
That's an interesting point.
But in Garcia, we're talking about commitment
to a locked facility and the like
after an NGRI finding, right?
Here, we've said before that section 35s,
although they obviously implicate a liberty interest
and you've done a great job of telling us what that is,
it's less restrictive than a NGRI finding, right?
NGRI finding.
-: Well, so the, well, you mean the commitment
that followed like in Garcia,
it was a 40-day evaluation right in the hands
of some clinical professionals to determine
whether in fact the person should be subjected
to a longer hospitalization.
-: 'Cause there's gradients of these things
in the legislature, like in the sexually dangerous persons
with the QEs, they've said, "No, you can't."
And we've said, "You can't do this without a QE.
"You need a QE."
And you're basically asking us to hold the same
in a section 35.
-: So a couple of things on that.
One, I'm actually, I think that when you look at Garcia,
which was a 40-day hold for evaluation,
that looked to the SDP context.
In Miner, the rule that Miner imported
into section 35 commitment hearings
for specific factual findings,
it cited to SORB cases for that proposition.
SORB and SDP are different,
but they're also looking at these predictive
dangerousness assessments of individuals.
There are a couple of other cases.
AM also cited out to 123 for, as an analogy,
'cause that's what we do, right?
We argue by analogy.
But the Garcia case, and then if I can a little bit
get to Justice George's question,
'cause a case that I found as I was preparing
for argument was Carrillo, which I hadn't read before.
I had not registered that it, that's the,
I, let me, the site is 483 Mass 269.
I hadn't registered originally
that it had any connection at all to section 35,
but in listening to the oral argument,
thank you, Fran Connelly,
for getting all those on the website.
Actually, Justice Gaziano, you raised Carrillo in that case.
That was where some, you know,
you vacated the conviction for involuntary manslaughter
because of the young man who gave his friend
or distributed to his friend
that heroin that led to his overdose.
And Amiki, in that case, and Justice Gantz
pressed the parties, what, how does this fit
within our section 35 jurisprudence?
If the possibility of overdose from heroin
is enough to get a conviction for involuntary manslaughter,
doesn't that mean that the possibility of overdose
satisfies the harm criteria?
And what the court said in that case
is what the Commonwealth argued
was the vulnerability to overdose
was heightened because the victim was in withdrawal.
And it was heightened because the potency was so great.
And the court said those things
are not susceptible to judicial notice.
There was no expert testimony
that the Commonwealth offered for those.
And those are not things that reasonable people would know.
So that, I think, is the closest
that I can get to that when you get to that harm criteria,
that's sort of the rubber meets the road.
And the other thing that I draw the court's attention to
in terms of the procedural deficits in these cases,
right, there's no notice.
You get dragged in.
You know, my loved one can say, Kara has a problem.
And I have no notice.
I'm in front of a clinician getting evaluated.
And there's really, I know the amicus argued
that these are really adversarial proceedings.
But who's the adversary?
You know, the judge is the fact finder.
The judge is applying the law to the facts.
The judge is like the prosecutor
and certainly in the Essex case was.
And if the judge can say, well, fentanyl's really toxic,
right, I mean, what are the effects of that?
Then the judge is effectively opining.
-: I think, well, actually, ironically,
one problem you have on Carrillo
is that we said that heroin, as it is, isn't enough.
And then we wrote, except if there's fentanyl.
-: Well, no, but that's, first of all,
that's combining if heroin is laced with fentanyl,
but it would have been, so that would have been
one of those X factors that-
-: Right, that was a plus factor, right.
-: But the other thing, I didn't include in my brief,
I was running up against my word limit time.
But so we say, if you were to tell me,
well, SDP's its own thing, one day to life,
we're not gonna analogize for that.
Then why is it that if I'm sued for malpractice,
the plaintiff doesn't even get to the jury
if there's not an expert about the standard of care.
Right, I mean, so my reputational harm,
my investment in my education is sufficiently protective
that there's gotta be an expert
that's gonna stand between me and a jury.
But in these cases, a family member,
and it's almost all a family member.
-: Yeah, not if we impose what you say on the first prong,
which is you need clinical support for a diagnosis
that you meet the alcohol or substance abuse syndrome
or whatever, I'm not using the proper terminology.
So say we give you that,
and we think you're right on that point.
And we have a kid on fentanyl, running away from home.
We have all kinds, this is what we can do, right?
We can make those kinds of calls.
We can't decide whether you have a substance use disorder.
That's a clinical decision, but we can decide,
oh my God, that kid, there's a real danger
that kid's gonna get hurt.
And honestly, that the clinician is silly
to think that that's not dangerous.
Because we know too often about those kids
who disappear from their home and get hurt
when they're on drugs.
So I mean, we know a lot about that.
-: But Justice Kafka, remember,
these are supposed to only happen in emergency, right?
So a couple things.
Yes, we as reasonable people, you as jurists,
might look at a situation and say,
well, geez, that sounds dangerous to me.
But the statute is supposed to be
this carefully circumscribed tool.
And the danger has to be due to the disorder,
not to just adolescent rashness.
In the young woman's case,
she'd already, she'd had two mental health lockups
for two years prior.
And she fled when she was basically said,
you're going to this place voluntarily,
or we're basically gonna put you in handcuffs
and take you there, and she ran.
And for the five days that she was gone,
she was texting her mom,
letting her mom know that she was safe.
Mom didn't say that those texts
sounded like she was loopy.
There was no indication that she was high
when she came back on her own.
She, you know, she asked her mom if she could come home.
I understand that these are dangerous,
but there's gotta be a closer connect.
And I, you know, the-
-: Well, the alternative is we're gonna,
we're endangering kids going too far the other way.
I get the first person, he's, okay, he's classic.
He's smoking too much marijuana.
In the old days, he would be growing his hair long.
Now he's cutting his hair off, you know.
Sounds like this is not the kind of thing
we wanna institutionalize somebody,
but he's quite different from the second child.
-: Right, well, so on the sort of the parade of horribles,
and I'm just, I'm gonna watch my...
I do actually wanna talk about the chronic,
the vagueness issue, even given what you said.
But the court's core judicial function
is to construe statutes consistent with the Constitution.
So the what would happen if we were to do it,
you know, that's a little bit,
again, order of operations out.
First, test the statute, and if it's carefully,
if it's not carefully circumscribed,
as I contend it isn't, then what do you do?
-: I thought we did that in a matter of minor.
We told them the order of operations
in matter of minor, right?
-: I'm sorry. -: We told juvenile judges
what to do in matter of minor
as far as the order of operations.
-: Oh, no, but I'm telling you
in terms of this court's consideration,
it's sort of, that I don't think that you don't
not get to the most extraordinary relief that I'm asking
because of what might happen next.
And if I can channel Justice Loewy for a second,
in Chapman, I consumed so many oral arguments
in the last few weeks, but during Chapman,
the Commonwealth wanted you to overrule Johnstone.
And the Commonwealth's argument was
you couldn't have anticipated the consequences
of that decision, and Justice Loewy said,
"That's a legislative decision.
"We look at the Constitution,
"we construe statutes that way,
"and then the legislature can fix it."
You know, in Bruno, the court noted
that for 10 years, there'd been no classifications for SDP,
no commitment hearings for SDP
because the statute had been, I guess it'd been reversed.
I don't know the history of that statute,
but for 10 years, that didn't happen, and we survived.
And SDP is much graver concern and danger to the public.
We're looking at the most extreme state power
when we're talking about protecting people
from their worst moments.
-: Counsel, I don't disagree with you
in the stuff that you, the lead up to it is very difficult,
and I hear you.
You know, somebody comes in for a warrant of apprehension,
they have no idea, they haven't done anything wrong
other than potentially being sick.
But I give you, and I'm with Justice Kaffir on this one,
because as a practical matter,
we do tether the first finding to what the clinician says.
It might not say that explicitly in the statute,
but I don't think you hear any judge say,
I don't credit, I credit what the clinician said
and find the first prong.
The dangerousest prong is the stuff
that I'm really having an issue with.
Judges do this all the time, and they do this,
and we mentioned some other context,
but we do it in bail, we do it in 58A.
Judges all the time have to make determinations
about the prospects of harm.
So why do we need a clinician to say,
in my clinical judgment, I think that X.
Why does the judge need that?
-: In part, so that the, partly because the,
I think that some of what happens
and what happened in my cases,
in particular the Essex one,
is you've got a parent who's very sympathetic,
who's legitimately concerned about her daughter,
and you've got a clinician who is sort of a neutral arbiter,
says, you know, where's the imminence of harm?
We may have a possibility of harm,
but she's taken three doses of, if I could just-
-: But hold on, but they're not a neutral arbiter, though.
I mean, you mentioned what the judge is.
The judge is both the finder of fact,
so that's a witness, and the judge is free
to not credit that witness when the witness says,
I think this person can be out in the community.
-: But again, I think it's about sort of,
do you get to, do you get over like a required finding?
If there's not competent evidence, and given this,
I mean, there's a little bit of,
why not require that there be some clinical,
some professional assessment?
Yes, the judge can decline if clinician says-
-: What's the role of the judge then in this?
-: To evaluate all of the evidence, absolutely to evaluate,
but you're missing competent evidence.
-: So it's basically heads I win, tails you lose,
so if the clinician says this person should not be committed
under your view of the constitutional provision,
or limitations, the person can't be committed,
just like QE, right? -: Yes.
-: But if the clinician says this person can be committed,
the judge, and only then can say,
I don't credit you, and I'm not going to commit.
-: And the findings of the judge should explain
why she doesn't credit the expert's testimony.
-: Isn't that, you're sort of running right in the face
of the legislature going the opposite way.
Now, I understand, I want you to address Keniston
before you sit down too, but the legislature is saying,
the way it redrafted the statute,
it's moving away from, it's going the exact opposite way
that you're arguing.
Now, we may need to make a correction,
at least on the first part,
but it's certainly not what they intended, that's for sure.
-: May not be what they intended,
but I'd actually, I'd point the court,
the court cited to the 2019 section 35 commission report in,
I think it was in GP, no, it might've been minor,
and on page eight of that report,
there was a recommendation that the Commonwealth
should commence a process with the goal to reduce
or eliminate the use of 35,
as there is insufficient evidence of its efficacy
to justify the deprivation of individual civil liberties.
Six people on that commission said,
yeah, that's what we should do, and three people said no.
-: Before you sit down, Keniston,
isn't it, can't we just say, okay,
the legislature softened the first prong,
whether they may have done that,
but they can't constitutionally, so we fix that problem.
Your brief suggests we can't fix that problem,
we have to declare the whole statute unconstitutional.
I don't, why?
-: Well, I mean, there's the court's jurisprudence
on section 123 has certainly embraced
a lot of kind of importing standards
and requiring doing sometimes declining
to import language and standards,
but as you just said, how do you reintroduce a standard
that the legislature stripped out?
-: 'Cause they softened it,
thinking that they could constitutionally,
but they can't, and we're gonna say, nope,
it needs to be supported.
We've been doing, our whole case law in this area
has been toughening up these statutes, haven't they?
-: Look, are you gonna hear me complain
if you judicially amend the statute?
No, but I don't, I actually-
-: Justice Loewy will be very unhappy with you.
(laughing)
-: And I know that my time's up,
there was one brief point I wanted to make
on the chronic and vague,
just 'cause the Donohue issue that you can't,
if those, the subsidiary clause of the harm
in the substance use disorder,
if that's modifying chronic use or habitual use,
then you just get rid of chronic and habitual
and it means the same thing and words have to have meaning.
But there was a point that I didn't make in the brief
about Donohue that I really wanna make.
That case in which the appeals court said
that chronic and habitual was unconstitutionally vague,
that was- -: We fixed that, right?
-: Yeah, but the point-
-: This is Justice Mielke's concurrence, we fixed that.
-: Oh, right. -: We said that chronic
has a different meaning.
Didn't we correct this?
-: For purposes of section 35?
-: I thought we've addressed the problem
that Justice Mielke has identified.
I wrote a decision.
-: Oh, but if I get this just on Donohue,
that in that case, the question was a physician,
take Physician Smith, Physician A has a patient
who's taken three tabs of fentanyl in a month
and says, "I don't think that's chronic use,
"so I'm not gonna report to the DPH."
Physician B says, "Yeah, three tabs of fentanyl a month,
"I think that's chronic, I'm gonna make that report."
Physician A was criminally prosecuted because,
and Physician B wasn't, and the court said,
and of course now I don't have it in front of me,
but vagueness is about sort of arbitrary assessment
of things, and now you take those physicians
and drop 'em into a section 35,
and Physician A says, "Yes, this young woman
"has a chronic disorder," and Physician B says,
"She doesn't."
There is no standard for chronic or habitual.
It's not defined anywhere further in the statute,
and without, and I don't know that the court can define it.
-: So the physicians who are testifying
on chronic, there's not a standard
in the medical literature on that?
-: Well, you know, as far as the AG's concerned
to demand that this be a diagnosis
is sort of reading a whole panoply of protections
and time into this, and the fact is that the statute
used to require, I think it was a psychologist
or a psychiatrist to do the evaluations.
Now it's basically, it's a social worker.
Are they even able to make a medical diagnosis
using the DSM?
I'm not entirely sure, but I think you start
to run into those kinds of problems.
My time is way over.
Thank you so much, and I'll stand on my brief.